Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

[Dr Julian Lewis (New Forest East) (Con)]

On behalf of the Intelligence and Security Committee, I entirely endorse the tributes and good wishes paid by the Solicitor General and the hon. Member for St Helens North (Conor McGinn) to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). His professionalism, calmness and dedication as Security Minister and in other roles are a model for us all. We admire him greatly and wish him the best of health.

Despite extraordinary technical advances in surveillance and espionage methods, human sources in intelligence operations remain indispensable, especially in the counter-terrorist work of our Security Service. Going undercover to join terrorist groups or remaining in a terrorist group, having become disillusioned with its objectives, in order to frustrate them, calls for courage of the highest order. The Intelligence and Security Committee has been briefed by MI5 on specific instances of this, and we accept that, without the use of covert human intelligence sources, many of the attacks foiled in recent years would have succeeded in their horrific aims. That is what justifies the authorisation of specified criminal acts, on occasion, in order to maintain an agent’s cover and in proportion to the potential harm that he or she is working to prevent.

As pointed out on Second Reading on 5 October, the report on Northern Ireland-related terrorism compiled by our predecessor Committee and presented to Parliament that same day firmly concluded at paragraph 39:

“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only when necessary and proportionate, and subject to proper scrutiny.”

Precisely because covert human intelligence sources are so effective, ruthless terrorist organisations have no qualms in devising tests of the utmost depravity to flush out agents infiltrating their ranks. That is why the provisions of Lords amendment 2 to prohibit the granting of criminal conduct authorisations, or CCAs, are certain to be as counterproductive as they are well-intentioned.

What the amendment proposes, if enacted, would soon come to constitute a checklist of atrocities that could be used to expose undercover agents known to be forbidden from carrying them out. As sure as night follows day, it would also increase the number of such atrocities committed. In order to flush out MI5 agents by putting suspects to the test, paranoid extremists would resort to testing more and more of their group members, if they felt that their organisation was coming under pressure and suffering setbacks.

[Mr David Davis (Haltemprice and Howden) (Con)]

My right hon. Friend does great service to this House and the Committee. Given what he has just said, does he believe that these terrorists are unable to read the Human Rights Act?

[Dr Lewis]

I have the advantage of having been present when my right hon. Friend made that very point on Second Reading, and therefore I was entirely prepared for that intervention. I will give a response that is perhaps slightly unorthodox, despite the emphasis put on the Human Rights Act by my right hon. and learned Friend the Solicitor General.

In my previous role as Chair of the Defence Committee, it became more and more obvious that the Human Rights Act, and the European convention on human rights, had had serious, and perhaps largely unanticipated, adverse consequences for the operations of our military. I suspect that if applied too literally, they would have equally adverse effects on the operations of our security and intelligence services. As the years go by, and as experience shows, I fully expect that there will have to be amendments to the Human Rights Act. I believe that although terrorists could indeed read it, they would take rather more seriously a categoric list of forbidden offences in the Bill than they would the rather generalised content of the Human Rights Act. I do not expect my right hon. Friend to be wholly satisfied with that, but it is my honest opinion.

Consequently, terrorist groups whose operations might have been compromised by technical means, rather than by human infiltration, would be likely to ask their genuine members to commit more and more forbidden offences, simply to prove their loyalty. The outcome would inevitably be an increase in murders and other serious offences on their lordships’ list, which would not have happened but for the incorporation in statute of such a collection of prohibited crimes.

As I said earlier, the ISC has had a comprehensive briefing from MI5, explaining how those authorisations are used in practice. We are convinced that the Security Service uses them appropriately and proportionately. We are also reassured that the measures in the Bill legalise only what is specified in each criminal conduct authorisation. That means that any other criminal behaviour not covered by the terms of a CCA may be subject to prosecution—a safeguard that will hopefully encourage the House to reject Lords amendment 2. This is one of those occasions when it is necessary—really necessary—to keep our enemies guessing.

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[Mr Jones]

It is, and there is another thing of which I would like to reassure the House, from a security point of view and from my position on the ISC. As I think I said on Second Reading, such decisions are not taken lightly by the security services. Senior officers authorise and control CHISs for good reasons. Do they have some difficult calls to make? Certainly, from one of the transcripts that I read, they do. Do they, on occasions, withdraw authorisation? Yes, if they think that the individual is doing something that is not justifiable or proportionate.

The other point is that we, and a lot of the Bill’s opponents, have concentrated on the security services, but remember that it will be used by the police and others.

[Mr David Davis]

As I was listening to the right hon. Gentleman’s very thoughtful speech, it occurred to me that it might be a mistake to have the same Bill cover the security services and everything up to and including the Food Safety Agency.

[Mr Jones]

I have to agree. One thing I do not agree with about the Bill is the scope in terms of some of the organisations that it covers; I raised my concerns about that on Second Reading.

Use of CHISs disrupts child exploitation, county lines, organised crime and—increasingly, when it comes to the security services—right-wing extremism, for which human intelligence is part of the suite of intelligence gathering that those services need to use. I do not agree with Lords amendment 2.

Lords amendment 4 is about juveniles. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), who has raised what is clearly an emotive issue. I think that covert human intelligence sources should be authorised for the investigation of juvenile criminality only in very exceptional circumstances. But as the Solicitor General said, the impression being given again is that somehow the Bill for the first time gives our security services or police the ability to authorise juvenile covert human intelligence sources. It does not: the ability is there already.

When I intervened on the Solicitor General, I referred to the CHIS code of practice. The Regulation of Investigatory Powers (Juveniles) Order 2000 sets out the additional safeguards relating to junior CHISs. The Government need to find some way of incorporating that in the Bill. The Solicitor General said that it was rather long, but something needs to be there, to answer the issues being raised. I accept—I have seen evidence of this—that there are occasions when junior CHISs are needed: work around county lines gangs is just one example. But the provisions need strengthening, and I ask the Solicitor General to look at that when the Bill goes back to the other place.

Lords amendment 5, on judicial oversight, is important. It is important that the Investigatory Powers Commissioner looks at these issues. Personally, I am not in favour of pre-authorisation because, having spoken to MI5 and seen the transcripts of at least one of the interviews in one terrorist case, I see that these situations are dynamic. It would be very difficult if authorisation had to be obtained every time.

However, I am very much in favour of the Investigatory Powers Commissioner having scrutiny over the authorisations afterwards; that would allow an extra tier of judicial oversight, which would certainly knock on the head some of the nonsense we have heard about the Government or the security services being given the powers to murder people. I asked the Solicitor General about the annual report because it is important for public transparency and scrutiny of this place. I welcome what the Solicitor General said about bringing back an amendment on the issue. That would also allow us on the Intelligence and Security Committee to have some scrutiny.

Like my hon. Friend the Member for St Helens North, I am a little disappointed that Scotland has not agreed to this; to protect the public, it is vital that it does. However, I am reassured by what the Minister said in the House of Lords about that not in any way limiting MI5 operations in Scotland in the national security interests of the whole UK.

Finally, I turn to the issue just raised by the right hon. Member for Haltemprice and Howden (Mr Davis). If I have one big concern about the Bill, it is the Christmas tree of other agencies that are to have these powers; I have not yet personally been given a good explanation of why the Food Standards Agency needs them, for example. I am quite comfortable and satisfied not only that the security services, police and other agencies are able to run CHISs, but that they do it. They know what to do, they do it on a regular basis, and they have officers with huge experience. That gives me some reassurance that the operation of the Bill, when it becomes law, will be done properly. I would like some convincing that the Food Standards Agency and others that use these powers on a less regular basis will necessarily have that thoroughness.

Let me conclude by again thanking the Solicitor General and the right hon. Member for Old Bexley and Sidcup, who have interacted on the Bill with Members across the House, and by once again thanking the men and women of our security services.

[Mr David Davis]

May I, too, start by paying proper credit to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)? James is a very old friend, a very long-standing colleague and an old protégé of mine. I spoke to him only a few days ago, and I have to tell the House that, given the seriousness of the operation that he is facing, he is both calmer and braver than I would be. We wish him well.

The origins of this Bill are, to say the least, somewhat doubtful. It started out with a circumstance where the state faced the prospect of being taken to the English courts over its current practice of giving many state agencies, including the Food Standards Agency, the right to authorise any criminal activity by their informants or agents, and having that power taken away from it. That is the origin of this Bill; that is where it comes from.

So what did the Government do? They cobbled together all the existing practices of their various police, intelligence and other agencies, good and bad—there were both good and bad—and set out to put them into law. That is not just theoretically problematic; it does not work perfectly today. For example, the Investigatory Powers Commissioner uncovered a case a couple of years ago where an MI6 agent or informant clearly very seriously broke the law, in breach of the guidelines he had been given, and the agency did not even inform the Minister before it carried on and allowed him to do the same again.

I am not prissy about the operation of our intelligence and police agencies. I was one of the Ministers who took through this House the Intelligence Services Act 1994. That is the one with the so-called licence-to-kill clause—the 007 clause, section 7 of that Act—which explicitly permits the action of the agencies to commit crimes under English law, but with restrictions and ministerial oversight built into it.

Nevertheless, this Bill, unamended, in my view goes too far, as is demonstrated by the fact that the amendments in front of us today were voted for in the Lords by a past Cabinet Secretary, a past Home Office permanent secretary, a past Foreign Office permanent secretary, a past National Security Adviser, a past Director of Public Prosecutions and a past reviewer of our counter-terrorism legislation—every single one of them more familiar at a close and tactical level than any Minister serving in Government. That is not meant as an insult; it is just a fact of life.

I have sympathy with many of the Lords amendments, but the business before us today contains, in my view, two vital amendments passed in the other place: Lords amendment 4, concerning the use of children as agents; and Lords amendment 2, placing limits on the type of crime that can be sanctioned. Both are entirely sensible amendments that significantly improve the Bill.

Let me start with child spies. The use of children as undercover informants is, in my view, very largely a morally repugnant policy. It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place. The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs, or continuing victims—continuing: that is the important point—of child sexual abuse, when they are recruited as intelligence sources. We should normally be seeking to move heaven and earth to remove these children from their horrible situations. Instead, the Bill would allow them to be sent back into harm’s way with minimal safeguards in place.

I am speaking from memory here, so I hope I get this exactly right, but in the other place, an example was given of a 17-year-old who was basically sold for sex to a variety of people, along with a number of other young women and children—legally, children—under one of these CHIS arrangements, and this was allowed to continue. The result was that the child involved was the witness to a murder, and not just the witness: she was effectively coerced by her circumstance into helping to cover up the murder, having to hide the evidence and so on. This was a youngster who had been a product of the care system, who had bounced from authority to authority—as we have seen happen in so many terrible cases—yet she was left in these circumstances in pursuit of getting more information about the criminal she was under the control of.

The Bill also raises the possibility of 16 and 17-year-olds being authorised by any of a number of different agencies to spy on their parents. These agencies include police forces and the intelligence services, but it also extends to the others that the right hon. Member for North Durham (Mr Jones) referred to earlier. Do we really want to give such arbitrary and unfettered powers to such agencies? I, for one, do not under any circumstances. Amendment 4 would limit the deployment of child spies to exceptional circumstances, where all other methods to gain information have failed, and only if there is no risk of any reasonably foreseeable harm. We are not talking about MI5 or MI6 here, but about police agencies that are dealing with people, no doubt in county lines operations, sex trafficking operations and so on. Their first duty is to rescue the child, so it is an entirely sensible amendment, which I will support. It introduces real, meaningful safeguards that have been endorsed by the Children’s Commissioner.

However, on its own, amendment 4 is not enough. In its current form, the Bill also allows organisations to permit their employees and informants to commit criminal activity, with no express limit on the crimes that can be authorised—a point addressed by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee. In my view, this lack of an express limit is wrong. It can never be right for the state to authorise the gravest of crimes—we are talking about a narrow group of crimes here: torture, murder, or sexual violence—yet that is precisely what this Bill will do if left unamended. I am as sceptical about the human rights protections as my right hon. Friend, but for different reasons, and I will explain why. For a start, allowing this type of behaviour puts us out of step with our international allies. Our Five Eyes security partners recognise the need for limits. Australia, Canada, and nowadays America all have common-sense limits on what their covert agents can do to prevent this line from being crossed. We must now do the same.

Lord Carlile of Berriew, who frankly is a long-standing opponent of mine in these things—he mostly takes the authoritarian state line, despite the fact that he is nominally a liberal—has described this Bill as the most constitutionally dangerous legislation presented in his working life. I agree, which is why I support Lords amendment 2, which places clear, common-sense limits on the crimes that covert agents can be authorised to commit, ensuring that the worst crimes such as murder, torture and rape can never be authorised. It mirrors an amendment I tabled in Committee in the Commons, and if the CHIS Bill becomes law without those limits, it is almost certain to be challenged in the courts and may eventually be overturned. This will not be the first time we have been here: those who have been here for some years will remember the Data Retention and Investigatory Powers Act 2014, which went through the same process. Tom Watson and I took it to court; we won, and the Government had to rewrite it. I hope we do not have to do the same with this Bill—it would be unwise to repeat that experience.

Let me explain why that is a risk. The argument made by some hon. Members, particularly those on the Intelligence and Security Committee—who have close involvement with this issue, and whose experience I recognise—has to be put up against one test: if it is impossible for us, why is it not impossible for Australia, America and Canada? They can operate; why can’t we? The Government have to answer that question, otherwise I think they will find that this Bill will not stand.

There are real risks to providing these powers without limit. At the end of last year, the Investigatory Powers Commissioner reported that he had identified several weaknesses in MI6’s agent-running practices in the UK, leading to several errors, and, even worse, that high-risk covert agents had indulged in serious criminality overseas. Only this morning, MI5 confirmed in court that it would authorise one of its informants to carry out murder as part of its activities. So much, frankly, for the safeguards of the Human Rights Act. If MI5 is willing to say that in court, where in this exercise is the protection of the Human Rights Act, which was the Government’s defence last time and, indeed, the Minister’s defence today?

There is a real need for legislation in this area; I agree about that with pretty much everybody who has spoken. This is better in law than in some standard written inside an agency, with all the influences that being inside an agency brings to bear on it. There is a need for legislation, but this legislation is, bluntly, thrown together. In many ways, it incorporates some of the worst elements of the preceding arrangements, which need to be put right. The Minister kindly said that he will be listening before the Bill goes back to the Lords for amendment. I think there are amendments that could meet most of the concerns of those who have spoken, and that is what I would like to see before it goes back to the Lords.

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[Sir Edward Leigh]

I would like to associate myself with the arguments that have been adduced today by the Solicitor General and by my right hon. Friend the Member for New Forest East (Dr Lewis). I am afraid that I must disagree with my other very good friend, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Nobody doubts his complete honesty and passion in these matters, and I hope that he does not accuse me of being an authoritarian, because I really am not. I hope I am as committed to civil liberties as anybody, but we are under a ruthless attack. The Minister mentioned 28 attacks, and we all know the appalling atrocities that have been committed on our streets in recent years. We all know about the Manchester bombing and about Lee Rigby. The list is endless. We all know that there are absolutely ruthless people who care nothing about our values and who are prepared to destroy and kill innocent people. This is not a game of cricket, and we cannot play and defeat these people by traditional policing methods. We cannot rely simply on bugging their mobile phones. As my right hon. Friend the Member for New Forest East, who speaks with more experience than anybody else as Chairman of the Intelligence and Security Committee, said, we rely absolutely on covert intelligence sources: people going into these organisations and acting with extraordinary bravery.

I understand the motivation of what has been said in the other place, and I can understand why people are adducing these arguments based on human rights, but there is a possibility that if we were to accept these Lords amendments we would be putting the lives of our own people at risk. The most powerful point made by the Solicitor General was almost at the beginning of his speech when he said that the state should not prosecute people for actions that the state asks them to do. These people are working for us. They are working to defend our people, and I have to say to my right hon. Friend the Member for Haltemprice and Howden that if it is a choice between my daughters being blown up on the London tube and there being some slight and occasional infringement of the human rights of terrorists and potential terrorists, I know where my choice is. I think that the public are also on this space.

[Mr David Davis]

I do not think that my right hon. Friend was in the Chamber for the beginning of my speech, because I was going to refer to him and tell him that I did not agree with him that the Blairite approach to terrorism worked at all. Indeed, I think it made it considerably worse. In my speech I listed a whole series of people—the Home Office, the Foreign Office, security and prosecution specialists—who knew their way around this like the back of their hand, and they were not making the recommendations because they thought they needed to uphold some civil liberty. They were making the recommendations because they thought that what they were proposing worked better than what the Government were proposing, and that is what I think, too.

[Sir Edward Leigh]

I apologise for missing that. I was summoned in to see the Speaker, as I warned the Deputy Speaker, so I missed that part of my right hon. Friend’s speech, but I listened to everything that was said in the early part of the debate, and I followed it carefully. I made an intervention on the Opposition spokesman, and I still believe it. I frankly trust Mr Blair and Mr Brown more than I trust the former leader of the Labour party on these issues.

[Sir Edward Leigh]

Of course I agree with that, and I wanted to make that point as best I could. It is quite a weak argument to say that, because certain people who have been in authoritative positions make a certain argument, that it is therefore a clincher in argumentation. Actually, the point put by my right hon. Friend the Member for New Forest East was far more powerful, frankly. He was adducing a specific example. If it is laid down in statute that a covert agent cannot take a particular action, that is an invitation to terrorist or gangster groups to have an initiation ceremony based precisely on what is forbidden by Parliament. I thought that that was a completely unanswerable argument.

[Mr David Davis]

rose—

[Sir Edward Leigh]

But if my right hon. Friend wants to defeat it, let us hear it.

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[Mr Davis]

I knew my right hon. Friend would liven up the debate. The test is not the test of authority. It is an empirical test. America, Australia and the other Five Eyes all have these limitations, and their intelligence agencies seem to work perfectly well.

[Sir Edward Leigh]

So he says, but I am no expert.

[Sir Edward Leigh]

Exactly, and I hazard a guess—as we have seen with the covid outbreak—we are a uniquely open society. We have very large levels of immigration. We have large minority communities. By the way, 99.9% totally oppose terrorists, do not believe in that and all the rest of it, but we know we are fundamentally and hugely vulnerable as a nation, probably much more vulnerable than Australia or New Zealand, so the fact that Australia does certain things does not apply. Personally, speaking for myself, I would rather listen to arguments from my right hon. Friend the Chair of the Intelligence and Security Committee, who has been briefed by MI5 and MI6, than to arguments adduced at second hand by my right hon. Friend the Member for Haltemprice and Howden, who tells me that in New Zealand and Australia they do things in a different way and are at no higher risk. In any court of law, the evidence adduced by my right hon. Friend the Member for New Forest East is more powerful than the arguments adduced by my other right hon. Friend.

We have just heard a passionate defence of children. No one denies the commitment of the hon. Member for Walthamstow (Stella Creasy) to the welfare of children, but when I was reading about this debate in some Sunday papers and other parts of the media at the weekend, it gave the impression that we were almost going back to Stalin’s Russia, and getting children to spy on their parents. This is ridiculous—we have to have a sense of proportion. We live in the United Kingdom. We have a system of law. Can we not trust our operatives in MI5, MI6 or the police force to act proportionately and in a necessary way?

[Mr David Davis]

No. That is why we have the law

[Sir Edward Leigh]

I am sorry, we already have human rights legislation—my right hon. Friend places a lot of faith in that. Like my right hon. Friend the Member for New Forest East, I think we have seen numerous instances where our armed forces have been treated appallingly in the past. There is great public concern about that. We do not want to put our security services, who are living in an infinitely more dangerous world, in the same position in which we put our armed forces. The Bill as it stands is proportionate and reasonable, and there has to be an element of trust. Personally, I think that it is extraordinarily unlikely in our country that MI5, MI6 or the police forces would act in such a way that if we knew what they were doing we would be horrified and think it was corrupt or that they were somehow abusing children. I suspect that if we use minors who are 16 or 17 in a certain way that is done very carefully. I suspect that we are not initiating any new behaviour at all and we are rescuing young people from cruel fate.